The Law Handbook 2024

846 Section 8: Disability, mental illness and the law Dignity of person paramount principle: • a person’s dignity is to be upheld, including by ensuring information is recorded accurately and respectfully (s 723). Aboriginal andTorres Strait Islander information principle: • the health and personal information of Aboriginal and Torres Strait Islander people is to be treated in a manner that promotes self-determination and is culturally safe, acknowledging connections to family, kin and community (s 724). Accuracy of information principle: • information relating to a person receiving mental health and wellbeing services that is recorded or shared is to be accurate, relevant and up to date. • any person or provider that makes a decision, performs a function or exercises a power related to thedisclosure, useor collectionof healthor personal information must give proper consideration to the information sharing principle (s 726). Accessibility of information principle: • information is to be provided (as far as reasonably practicable) to people in an accessible format that acknowledges the needs of people having regard to their age, disability, neurodiversity, culture, language, communication, religion, ethnicity, sex, gender identity, and/or sexual orientation (s 725). Information sharing with consent As a general rule, consumer consent is required for the sharing of health and personal information and consumers are able to withdraw this consent at any time (s 729). Limitations on disclosure of information The MHWA requires and authorises the disclosure of personal and health information in a range of circumstances. However, this information must not be disclosed if the person disclosing it reasonably believes that by doing so there is a risk that someone may be subjected to family violence or other serious harm (s 31). This applies even if the MHWA otherwise requires disclosure, or if the person the information is about has consented. Limitations on disclosure of information A mental health and wellbeing service provider is not required to disclose information to family, a carer or a supporter, despite consent being given, if the disclosure: • poses a threat to the life or health of any person; • could unreasonably impact on the privacy of other persons; • is unlawful; • is inconsistent with a requirement or authorisation by or under law; • may prejudice an investigation of unlawful activity; • may prejudice a law enforcement function by or on behalf of law enforcement agency; • is likely to cause damage to the security of Australia in the course of a law enforcement agency performing a function (s 732). As a result of the MHWA, providers have a positive duty to share some or all of a person’s health information with their family, a carer or a supporter, after the consumer has been admitted or discharged from an inpatient service, with the consumer’s permission (s 722). A consumer’s information can be shared with specified service providers where reasonably necessary to assist in referrals or ensure integrated services are provided to the consumer, unless the consumer elects not to have that information shared (s 733). Exceptions to consent-based sharing of health information There are a number of exceptions to consent-based sharing of health information: 1. Electronic health information system A person who is employed or engaged by a mental health and wellbeing service provider may enter a person’s health information into the electronic health information system (CMI/ODS) without consumer consent (s 727). Information about a consumer held in the electronic health information system may also be accessed by providers, without a consumer’s consent, for the purpose of providing services to a consumer.